Hudson v. Lee
| Decision Date | 16 June 1964 |
| Docket Number | No. 40508,40508 |
| Parties | Cassie HUDSON, formerly Cassie Kapp, F. E. Hudson, her husband, and Floyd Kapp, Plaintiffs in Error, v. George W. LEE et al., Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. A court of equity will look at the real object of a deed and the intention of the parties, and will compel the fulfillment of both, and if possible, the intention of the grantor will be gathered from the whole instrument. If the intention of the parties to the deed is plain, parol evidence is not admissible to prove an intention different from the terms of the deed, but where a deed possesses an element of uncertainty, parol evidence, the admissions of the parties, and other extraneous circumstances may be proved to ascertain its true meaning.
2. In cases of equitable cognizance the appellate court will examine and weigh the evidence, but the findings and judgment of the trial court will not be disturbed on appeal unless it appears that such findings and judgment are clearly against the weight of the evidence.
Appeal from the District Court of Craig County; John Q. Adams, Judge.
Defendants in error brought an action against plaintiffs in error to establish their rights under an easement. Grand River Dam Authority (GRDA) was joined as party defendant for the purpose of requiring GRDA to issue docking permits under its rules and regulations. Judgment was for defendants in error, and plaintiffs in error appeal from the order overruling their motion for a new trial. Judgment affirmed.
L. Keith Smith, Jay, Jack L. Rorscach, Vinita, for plaintiffs in error.
C. N. Haskell, Tulsa, Charles C. Chesnut, Miami, Richard L. Wheatly, Jr., Vinita, for defendants in error.
Defendants in error, hereinafter referred to as plaintiffs, constructed private fishing, boat and swimming docks on the shores of Grand Lake. Subsequent to the construction, the Grand River Authority, referred to as GRDA, adopted certain rules relating to such docking facilities. These rules provided that no permit shall be issued for the construction, maintenance and operation of any docking facilities to any person who does not own the shore land abutting the shore line of Grand Lake adjacent to the location of the docking facilities, unless the applicant for the permit first obtains the written consent of such abutting land owner; if the abutting land owner should cancel his consent, then the permit would be cancelled by GRDA; and, if any docking facilities are constructed, maintained and operated in violation of the above rules, GRDA, after notice to the owner of the facilities would cause the same to be removed at the expense of the owner.
On February 12, 1962, GRDA issued an order, effective on March 1, 1962, cancelling plaintiffs' docking permits, and requiring plaintiffs to remove such facilities. Such order was issued on the theory that Cassie Hudson, formerly Cassie Kapp, F. E. Hudson, her husband, and Floyd Kapp, plaintiffs in error, were the abutting land owners adjacent to the location of the facilities, and that they had not consented to the renewal of plaintiffs' docking facility permits.
Plaintiffs commenced this action to enjoin GRDA from enforcing its order of February 12, 1962, or otherwise revoking or cancelling their docking facility permits, and to enjoin the other defendants from further proceeding before GRDA to obtain cancellation of their permits and asserting or claiming that plaintiffs should be required to obtain their consent before plaintiffs' docking permits could be issued. Plaintiffs' theory is that by virtue of an easement granted to them in 1945, by the then owner of the abutting shore land, the consent of the individual defendants was not necessary because the easement was sufficient to meet GRDA's requirements.
The trial court found and adjudged that the easements granted to plaintiffs in 1945, gave them the right of ingress and egress for the purpose of installing and using the docking facilities and perpetually enjoined the individual defendants from interfering in any manner with plaintiffs' enjoyment of said rights. In the journal entry of judgment, the trial court perpetually enjoined GRDA from cancelling plaintiffs' docking permits upon the grounds that plaintiffs did not have the written consent of the abutting land owners. The trial court later modified its judgment against GRDA to the extent that the easements granted to plaintiffs in 1945, was sufficient to give written consent under the rules and regulations promulgated by GRDA.
The individual defendants, plaintiffs in error, perfected this appeal from the order overruling their motion for a new trial. GRDA did not perfect an appeal.
In September, 1945, one M. R. Kapp, was the owner of certain land abutting the shore line of Grand Lake. On September 19, 1945, M. R. Kapp, joined by his wife Cassie (one of the plaintiffs in error), conveyed by separate deeds to the individual plaintiffs or their immediate grantors, six lots or cabin sites. None of the deeds conveyed lots or cabin sites which abutted the shore line of Grand Lake, but each deed contained this provision immediately after the description, 'Together with the right of ingress to and egress from the above described land on roads designated by grantors to the nearest public highway touching other lands now owned by the grantors herein, and the right of ingress and egress across the land between the above described land and the waterfront of Grand Lake * * *.' (emphasis ours).
The evidence discloses that the right of ingress and egress referred to covers a narrow strip of land which is parallel to the contour of the shore line of Grand Lake and the same was used as a roadway. The ground drops sharply from the strip of land toward the shore line and is not suitable for cabin sites. In 1946, one of the plaintiffs constructed a cabin on his lot and a swimming dock. Mr. Kapp picked the location for the swimming dock and at the same time picked locations for two additional docks. In 1946 or 1947 two sets of concrete steps were built from the roadway down to the level of the shore line. The location of the steps was picked by Mr. Kapp and he and Cassie Kapp (Hudson) were present when the first dock and steps were constructed and neither objected to such construction. Prior to Mr. Kapp's death in 1948, the construction of a second dock was commenced and after his death two more docks were constructed.
Cassie Kapp, who later married defendant F. E. Hudson, and defendant Floyd Kapp succeeded to the ownership of the interest of Mr. Kapp after his death. Cassie Kapp Hudson was present when the last three docks were constructed and made no objections.
One of the plaintiffs testified that he had a converstion with Cassie Kapp Hudson and she told him they retained the strip of land to keep some one from fencing the roadway and they wanted the roadway to remain open so they could have access to their other land and to a little cove where they were going to construct a dock. Another plaintiff testified, without objection, that Mr. Kapp assured him when he purchased his lot that the same was a lake front lot. Another plaintiff testified that while he was finishing the inside of his cabin. Cassie Kapp Hudson came by and during their conversation he told her he was going to build a dock and she made no objection.
The evidence discloses that in 1959, when the last dock was built, GRDA notified one of the plaintiffs that a permit would have to be secured; that when application for the permit was made, GRDA required the written consent of Cassie Kapp Hudson; that she refused to give her consent unless she was paid $120.00 by plaintiffs; that $120.00 was paid for 1959, and $120.00 for 1960; that plaintiffs refused to pay $120.00 for 1961 and Cassie Kapp Hudson refused to consent to the docking facilities without further payment. GRDA's refusal to issue the permit without her consent precipitated the present action.
Cassie Kapp Hudson in her testimony denied that she talked with plaintiffs about the construction of the docking facilities. She admitted she knew the docks were there but she did not consent to the construction thereof, although she made no objections between 1946 and 1959.
Defendants contend that the deeds conveying the lots or cabin...
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